2000F20-CABLE TELIVISIONWestern Integrated Networks of Te~
ORDINANCE NO. 00-F-20
AN ORDIN~CE OF THE CITY COUNCIL OF THE CITY OF ~
TEXAS, ESTABLISHING A FRANCHISE AGREEMENT WITH ~
INTEGRATED NETWORKS OF TEXAS OPERATING L.P. FO
TELEVISION AND OTHER SERVICES; PROVIDING THE TEl
CONDITIONS UNDER WHICH THE FACILITIES OF ~
·
INTEGRATED NETWORKS OF TEXAS OPERATING L.P. ~
INSTALLED, OPERATED AND MAINTAINED; ESTABLISHING
FOR THE FRANCHISE; AND ESTABLISHING AN EFFECTIVE D
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHE]
Section 1. Definitions; construction.
In this Ordinance:
1. Basic monthly service means the minimum level of cable service
charges the lowest monthly fee.
2. "Cable service" means
a. the one-way transmission to customers of
(1) video programming provided by, or com
programming provided by, a television broadcast station; or
(2) other programming services, by which is meant v
information that Grantee makes generally available to all cust
the services are deemed to be "cable service" under federal
b. customer interactive (two-way) transmissions required for
of video programming or other programming services (such as, for e:
accessing and utilization of data bases, the Interact, video game
services), to the extent they are "cable service" under federal law.
3. "City" means the City of Schertz, a Texas municipal corporation
4. "City Council" means the City Council of the City.
",..638283.3
5. "City Manager" means the City Manager of the City or ti
designated representative.
6. "City requirements" means all City charter provisions,' ordin
resolutions, and policies, in effect on the effective date of this Ordinance
:as Operating L.P.
;CHERTZ,
VESTERN
R CABLE
.~MS AND
VESTERN
NILL BE
A TERM
ATE.
rTZ, TEXAS:
for which Grantee
>arable to video
ideo, audio, or data
vmers, to the extent
law; and
the selection or use
~ample, customers'
services, or other
.e City Manager's
ances, regulations,
md as they may be
changed from time to time during the term of this Ordinance, that apply to
under this Ordinance.
7. "City right-of-way" means the surface, the air space above the s'
below the surface of any public street, highway, alley, sidewalk, boulevard, b
easement, or similar property in which the City holds a property interest or
management or control (including property hereafter added to the territoria
and which may be used for the installation and maintenance of Grantee's fi
8. "FCC" means the Federal Communications Commission.
9. "Grantee" means Western Integrated Networks of Texas Operatix
limited partnership.
10. "Grantee's facilities" means Grantee's cables, lines, wiri
underground conduits, manholes, electronic conductors, and other fixture..
maintenance and operation of Grantee's cable television signal distribution
11. "Person" means any individual, firm, partnership, associ
company, or organization of any kind.
12. "Significant service interruption" means a cable service o
continuous hours or more to 1,000 or more of Grantee's customers in the C
13. "Start-up date" means the date on which Grantee begins
television services to any customer through Grantee's facilities.
14. "~ill" is mandatory and not merely directory.
Words and phrases that are not defined in this Section will have the meani
federal Communications Act of 1934 as amended by the Cable Communications 1~
the Cable Television Consumer Protection and Competition Act of 1992, and the T~
Act of 1996, and, if not so defined, will have their common and ordinary meaning.
Section 2. Grant of Franchise.
A. The City hereby grants to Grantee a non-exclusive franchise to constmct
maintain Grantee's facilities in, across, over, above, and under City fight-of-way,
of this Ordinance.
B. The City grants this fi'anchise only to the extent of the City's interest in th,
In granting this franchise, the City does not
1. warrant title to any City fight-of-way to Grantee;
2. assume any responsibility for securing for Grantee any City .right-{
does not already own or control;
638283.3 2
Grantee's activities
arface, and the area
ridge, tunnel, utility
exercises a fight of
limits of the City)
cilities.
tg L.P., a Delaware
ng, towers, poles,
necessary for the
;ystem and service.
ation, corporation,
utage lasting four
ity.
distributing cable
ng provided in the
'olicy Act of 1984,
fiecommunications
erect, operate, and
ubject to the terms
City fight-of-way.
>f-way that the City
3. give to Grantee any form of permission to make and maintain
utility poles or to use any City property other than City fights-of-way;
4. make the City responsible in any way for the construction, open
or performance of Grantee's facilities, or for any other activity or obligatio
5. convey to Grantee any ownership or property fight in any City rigi
or used by Grantee regardless of any payments made by Grantee to the City,
or inaction by the City or by Grantee;
6. grant to Grantee any right or privilege lawfully within the jurisd
regulatory body or agency, it being Grantee's responsibility to secure and
licenses, permits, and authorizations required in order to install, operate, and
facilities; or
7. grant to Grantee the fight to allow the use of Grantee's facilities
for the provision of any service. Grantee will not allow the use of Grantee's
entity to provide any service unless the entity warrants that it has obtaine,
required by the City for such use.
C. This franchise is not exclusive. The City reserves the fight to make a s
other Person at any time.
Section 3. Protection of Persons and Property; Indemnification and Waiver; i
A. Grantee will take all necessary precautions to protect all Persons an
personal injury or property damage that may result from the installation, maintenar
Grantee's facilities. If, in the City's opinion, Grantee has not taken any such necess~
City may notify Grantee in writing, and Grantee will correct the situation within
Grantee agrees, however, that it is solely responsible for the installation, maintenan¢
Grantee's facilities, and the City does not assume any such responsibility because o
or inactions regarding the installation, maintenance, or operation of Grantee's facil
B. Grantee shall carry, throughout the term of this Ordinance, personal an,
liability insurance with insurance companies qualified to do business in the Sta!
insurance shall show the City as an additional insured party. The mounts of su
carded for liability due to property damage shall be $500,000 as to any one occm
liability due to injury or death of a person $2,000,000 as to any one person and $5,00
occurrence. A certificate or certificates of insurance shall be filed and maintained ,~
the term of this Ordinance. Grantee agrees that, at the end of the fifth (5th) and tel
fiscal years following the effective date of this Ordinance, it will increase the am
required to be maintained by Grantee under this Section 3B in accordance with an op
insurance consultant agreed to by the City and Grantee stating that such amounts sl
C. GRANTEE AGREES TO HOLD HARMLESS, INDEMNIFY, AN
CITY AND ITS OFFICERS, AGENTS, AND EMPLOYEES FROM .AND
CLAIMS, DAMAGES, AND LIABILITY, INCLUDING FEES OF ATTORNE~.
638283.3 3
[ttachments to City
ttion, maintenance,
n of Grantee;
at-of-way occupied
~or any other action
iction of any other
hold all necessary
maintain Grantee's
~y any other entity
?acilities by another
all authorizations
.milar grant to any
Insurance.
d property against
tce, or operation of
wy precautions, the
a reasonable time.
e, and operation of
f the City's actions
ities.
property damage
of Texas. Such
ch insurance to be
xence, and against
D,000 as to any one
4th the City during
ath (1 ffh) complete
ounts of insurance
inion of a qualified
~ould be increased.
D DEFEND THE
AGAINST ALL
IS AND EXPERT
WITNESSES, ARISING IN CONNECTION WITH THE INSTALLATION,
AND OPERATION OF GRANTEE'S FACILITIES. GRANTEE WILL 1
EXPENSE ALL ACTIONS THAT MAY BE COMMENCED AGAINS~I
CONNECTION WITH THE INSTALLATION, MAINTENANCE, AND ~
GRANTEE'S FACILITIES. Thc selection of legal counsel for any such dcfcns~
discretion of the City.. The specification of minimum coverage limits ~n Section
Grantee's indemnity obligations in any way.
Section 4. Facilities Construction; Service Availability.
A. Grantee will complete the initial construction of all of Grantee's facili
June 1, 2006. As of that date, Grantee will make cable service available to 100% of ti
the City. If Grantee does not complete construction of Grantee's facilities througl
same time, Grantee will give written notice to the City of the date for initiation of~,
of the City in which Grantee is completing construction. '
B. Grantee will install its facilities in compliance with all applicable la~
including the City requirements and the regulations of the FCC and the Federal Aviat
C. Grantee will extend its facilities and make cable services available to n{
within the City whenever a density of at least 25 residential units per cable mile is re
from Grantee's facilities then existing. Measurement of cable length will not inclu
residences.
D. In addition to its obligations above, Grantee will extend Grantee's facilil
services available to any residence or business where the potential customer agrees tr
extension.
E. If, during the term of this Ordinance, the City grants approval of plats for
the City shall notify Grantee or advise the developer to notify Grantee of the timing
location of trenching fights-of-way and give Grantee reasonable opportunity to pla
in such trenches. The City will make available to Grantee copies of all plats for
approved by the City during the term of this Ordinance.
F. Grantee shall provide a locking or electronic blocking device to any sub,,
service, at the subscriber's request, which, when locked by a key or electronically bl
the television set from being tuned to any channel designated by the subscriber. Gr,
right to charge an amount equal to its cost of providing said locking device.
Section 5. Operation and Maintenance of Grantee's Facilities.
A. Grantee will operate and maintain Grantee's facilities so that they produ
signals that are clear and undistorted, and as good as state-of-the-art cable service te
of the start-up date of this Ordinance and throughout the term of this Ordinance.
B. Grantee will operate and maintain Grantee's facilities in compliance wit~
and regulations, including the City requirements and the regulations of the FCC and t
638283.3 4
~IAINTENANCE,
}EFEND AT ITS
THE CITY IN
)PERATION OF
will be at the sole
3tt does not limit
.ties in the City by
te residences within
~out the City at the
;ervice to each area
us and regulations,
.on Administration.
:w residential areas
alized, as measured
.de service drops to
:ies and make cable
pay the cost of the
new developments,
of construction and
ce cable or conduit
new developments
;criber of the Cable
ocked, will prevent
mtee shall have the
ce audio and visual
chnology allows as
all applicable laws
.ae Federal Aviation
Administration. Grantee will install, operate, and maintain Grantee's facilities so th:
cross-modulations in the cable or interference with other electrical or electronic sy
C. Grantee will operate and maintain an office conveniem to residents of t
open during normal business hours and will have a local listed telephone number to
and requests for repairs or adjustments at any time, 24 hours per day, seven days per
maintain a force of one or more agents or employees specifically assigned to the {2
will have sufficient employees to provide safe, adequate, and proper services for {
Grantee will locate and correct malfunctions in Grantee's facilities promptly. It
satisfied with the resolution of a service complaint after contacting the local office
complaint, on the third contact the complaint will be handled personally by Gr:
manager or his equally authorized designee. On the fourth complaint, Grantee will
City Manager in writing, and the complaint will be promptly resolved by Gram
satisfaction of the City Manager.
D. Grantee will notify all customers by mail of all channel changes within
to the change.
E. Grantee will employ a trained and competent staff for the installati
maintenance of Grantee's facilities.
F. Grantee will render efficient service, make repairs promptly and proper
service only for good cause and for the shortest time possible. Planned service ir
preceded by notice to customers and will occur during periods of minimum use of
by Grantee's customers.
G. All installations and repairs made by Grantee will be performed in a goc
and workmanlike manner. Grantee will make all connections of wires, cables,
customers' residences and buildings in a manner that is waterproof and prevents ac
vermin.
H. Grantee agrees to provide programming responsive to the City's nee
Spanish language programming. This programming shall consist of at least two (2
channels or other Spanish cultural equivalents available at all times in the most p{
offered by Grantee.
I. Grantee will not hinder the retransmission of a signal transmitted by an
broadcast service for the benefit of the hearing impaired.
J. Effective one (1) year after Grantee completes its system buildout as desc:
Grantee will provide, a report to the City Manager within fifteen (15) days after the e
quarter that includes the following for the preceding calendar quarter:
1. Grantee's compliance with FCC customer service requirements,
year history, in narrative, table, and graph form; and
~t they do not cause
stems.
he City that will be
receive complaints
week. Grantee will
:ity at all times and
3rantee's facilities.
a customer is not
twice for the same
mtee's local office
.3romptly notify the
ee to the complete
;even (7) days prior
on, operation, and
[y, and interrupt
tterruptions will be
Grantee's facilities
.d, substantial, safe,
and equipment to
.cess by insects and
ds and interest for
) Spanish language
~pular service level
broadcast or non-
/bed in Section 4A,
nd of each calendar
with previous one-
638283.3 5
2. the total number and the total duration of significant servi~
narrative, table, and graph form.
K. Grantee will not disclose personally identifiable information concerning
third party without the prior written consent of the customer. Personally identifiat~
not include any record of aggregate data which does not identify particular persons
L. The City Council shall have the fight under this Ordinance at any
performance of Grantee hereunder and to ascertain that all provisions of this Ordin:
and faithfully carded out. The City Council may conduct formal performance evalu
Facilities and the Cable services on or about the fifth (5th), ninth (9th), and thirteentl
of the effective date of this Ordinance. The City shall permit the Grantee to be invoN
on establishing the method and format of such eValuation prior to the evaluation.
M. The City shall automatically have all of the fights, benefits and
municipalities under federal or State of Texas cable television laws or regulatio:
amended during the term of this Ordinance, including specifically all powers or rigl~
television rates, services and programming, as if such laws and regulations were i~
Any other matters permitted by such enactments or amendments shall be negotiated
City and Grantee.
Section 6. Provision by Grantee of Facilities and Services to Public Entities.
A. To the extent permitted by law, Grantee agrees to install at its expense,
all equipment necessary to enable local emergency management officials to int{
broadcasting on Grantee's facilities for the purpose of making emergency audio and
announcements and to provide that such override may be introduced from a facility
the City. This equipment is to be installed at a location accessible by and reasonab
City by the system build-out date described in Section 4A.
B. Grantee shall provide one (1) service connection, including cable televis
service through a minimum of two-pair fiber optic service to each City building
now or hereinafter designated by the City Manager and cable television and/or inte~
of the following locations:
1. all public and parochial school buildings as may be now or herein
the City Manager; and
2. each classroom building and dormitory building of each college
If, during the term of this Ordinance, Grantee develops, builds, or obtains the abili
forms of cable television services not currently being provided, and such new servi
provided to either residential or commercial subscribers in the City, and if such serv
to by residential or commercial subscribers, Grantee shall so inform the City Man:
e interruptions, in
my customer to any
le information will
:ime to review the
x~ce are being fully
ations of Grantee's
~ (13 th) anniversary
'ed in and comment
3owers granted to
~s in effect and as
~ts to regulate cable
tcorporated herein.
~n good faith by the
>n a regional basis,
rmpt all television
video management
~asily accessible by
.y acceptable to the
ion and/or intemet
facility as may be
net service in each
after designated by
or university.
ty to provide other
ces are offered and
'ices are subscribed
iger in writing and
shall provide at least one (1) service connection to provide such service to the City's t!acilities as set forth
above; however, Grantee shall be under no obligation to continue to provide sixth n,~w service(s) to the
City if Grantee ceases to offer or provide such new service(s) to either resid~mt or comrc, ercial
.... 638283.3 6
subscribers in the City. No charge shall be made by Grantee for the installation, d
reasonably requested), reconnection (when reasonably requested), monthly services,
of equipment authorized by this Section; however, Grantee shall not be requ
installations if line extension in excess of 300 feet would be required.
C. Grantee shall advise the City with its quarterly report under Section 5J o
in federal and/or Texas law and regulation relating to the cable industry and any s
in technology in the cable industry relating to the quality and quantity of serv
available and shall promptly inform the City in writing of the implementation of ar.
another cable system.
D. Grantee shall arrange for its representatives to meet at least on.
representatives of the City to provide additional information which Grantee believes
in connection with Grantee's Facilities and to respond to inquires from the City
.
Grantee's Facilities and this Ordinance.
E. ~tee shall meet or exceed all local programming requirements or reco
FCC or applicable State of Texas or federal law or regulation. Grantee may produce
itself or may rely on local groups to produce such programming with technical assis
Grantee agrees to permit the City, as the City's option, to participate in the formati
a broadly representative advisory board to help implement community involvement
production and use of public access channels. Grantee shall provide and maint:
Antonio, Texas or in another location at Grantee's option reasonably accessible to ~
for the purpose of local program production and origination.
Section 7. Promulgation of Rules by Grantee; Refunds.
A. Grantee may promulgate roles, regulations, terms, and conditions gover
its business. These roles, regulations, terms, and conditions must be reasonable ar.
with the terms of this Ordinance or other ordinances or the charter, laws, regulatio~
City, the State of Texas, or the United States.
B. Grantee will make appropriate credits or refunds to customers for petit
facilities undergo a significant service interruption and in other circumstances i
services are not of the highest quality.
Section 8. Conditions on Occupancy of City Right-of-Way.
A. Grantee will submit plans for any change in Grantee's facilities in
including but not limited to changes in the location of facilities and the extension or
facilities, to the City Manager at least five (5) days prior to the start of construcl
Grantee will not begin construction of the change without first obtaining the approw
City Manager. These requirements do not apply to bona fide emergency repairs. (~
immediate verbal notice to the City Manager of any excavation performed within
in connection with an emergency repair. Grantee will in all events comply with all
and regulations and all permitting requirements of the City. '~'
638283.3 7
isconnection (when
and/or maintenance
.ired to make such
f any major changes
ignificant advances
ices which may be
[y interconnect with
ee each year with
is useful to the City
in connection with
mmendations of the
such programming
:ance from Grantee.
on and operation of
in local origination
ain a studio in San
esidents of the City
ning the conduct of
~d must not conflict
:s, or policies of the
~ds when Grantee's
n which Grantee's
City fight-of-way,
construction of new
ion of the change.
al of the plan by the
[rantee will provide
a City fight-of-way
construction codes
B. Grantee shall not install additional poles where poles are already in place
necessary licensing agreements to utilize existing poles for its cable.
C. Grantee will not place Grantee's facilities where they will interfere wit
equipment, or fixtures of any water, wastewater, gas, electric, other cable television
or with drainage, in a City fight-of-way. Grantee will place any poles, equipment,
in any street or alley at the outer edge of the sidewalk and as close as practicable to
street or alley, and in a manner that does not interfere with vehicle or pedestrian tra~
and fights-of-way.
D. In City right-of-way where electric, existing cable television, and teleph{
routed underground, Grantee will route its lines underground.
E. When Grantee or its contractors, agents, or employees disturb any p
driveway, or other improved 'surfacing in City fights-of-way, Grantee will repl~
surfacing throughout the disturbed area to a condition as good or better than the con,
before work was commenced. Grantee will repair any settling or deterioration ofthe
a period of one (1) year after the completion of the work. Grantee will fully comply
applicable to such work, including but not limited to sawcutting, backfilling, com
standards. Grantee will replace or repair all privately and publicly owned property
of the installation, operation, or maintenance of Grantee's facilities.
F. Grantee's use of City fight-of-way will be subordinate to roadway, sid~
uses. If the City elects to install or alter the mute, location, width, or grade of any stx
drainage, or related facility in a City fight-of-way, Grantee will remove, relay, o~
facilities that are affected at Grantee's expense upon reasonable notice by the City.
the fight to require Grantee to change the location of any of Grantee's facilities at
when the public convenience requires the change, as determined by the City Mare
City fight-of-way is vacated or abandoned, Grantee will remove all of its faciliti,
way and restore the premises without delay or cost to the abutting owners or the Cit2.
or fails to remove, relay, or relocate Grantee's facilities after notice by the City, th,
fight to remove, relay, or relocate Grantee's facilities and charge the costs to Grante
interruptions in service to any of Grantee's customers will be the sole respons!
GRANTEE WILL HOLD THE CITY AND THE CITY'S AGENTS, E~
CONTRACTORS HARMLESS FOR ANY DAMAGE TO GRANTE}
LOCATED IN CITY RIGHT-OF-WAY IN THE EVENT GRANTEE'S F
DAMAGED AS A RESULT OF CONSTRUCTION OR MAINTENANC.
PERFORMED ON THE CITY'S ROADWAYS, SIDEWALKS OR DRAIN.~
BY THE CITY OR THE CITY'S AGENTS, EMPLOYEES, OR CONTRAC
G. Grantee's use of City fight-of-way will be subordinate to use by City
elects to install or alter the route, location, or character of any City utility facility in
Grantee will remove, relay, or relocate Grantee's facilities that are affected at Grax
reasonable notice by the City. If Grantee refuses or fails to remove, relay, or relocat{
after notice by the City, the City will have the right to remove, relay, or relocate Gn
charge the costs to Grantee, and any resulting interruptions in service to any of Gran
63s283.3 8
and shall secure all
~ the existing lines,
.or telephone utility,
md fixtures set by it
the boundary of the
'el on streets, alleys,
>ne service lines are
avement, sidewalk,
~ce and restore the
:lition of the surface
restored surface for
with all regulations
>action, and paving
:lamaged as a result
.,walk, and drainage
eet, alley, sidewalk,
relocate Grantee's
The City will have
Grantee's expense
~ger. In the event a
~s from the right-of-
~. If Grantee refuses
~' City will have the
e, and any resulting
[bility of Grantee.
[PLOYEES, AND
','S FACILITIES
ACILITIES ARE
E OPERATIONS
~GE FACILITIES
]?ORS.
utilities. If the City
a City fight-of-way,
ttee's expense upon
Grantee's facilities
ntee's facilities and
tee's customers will
be the sole responsibility of Grantee. GRANTEE WILL HOLD THE CITY
AGENTS, EMPLOYEES, AND CONTRACTORS HARMLESS FOR AN
GRANTEE'S FACILITIES LOCATED IN CITY RIGHT-OF-WAY
GRANTEE'S FACILITIES ARE DAMAGED AS A RESULT OF INS~
MAINTENANCE OPERATIONS PERFORMED ON THE CITY'S UTILITI
OR THE CITY'S AGENTS, EMPLOYEES, OR CONTRACTORS.
H. Grantee will provide as-built maps of all or part of Grantee's facilitie
computer form, compatible with the City's mapping systems, at the request of the
I. Grantee will comply with all City requirements, requirements of other gov
and industry standards for locating existing utility facilities prior to performing an3
on Grantee facilities that requires excavation.
J. Grantee will temporarily raise or lower its wires and cables to permit the
at the request of any person holding a building moving permit issued by the City.
to the requesting person the reasonable expense of temporary removal, raising, or lo
cables, and Grantee may require payment in advance. Grantee may require that a reqt
72 hours in advance.
K. Grantee will have the authority to trim trees upon and overhanging street
and public places of the City to prevent branches from coming in contact with Gm
trimming will be done in accordance with City requirements and at Grantee's exp{
Section 9. Preferential or Discriminatory Practices Prohibited.
A. Grantee will not grant any reference or advantage to any Person, nor su
any prejudice or disadvantage as to rates, charges, service facilities, roles, regulatic
of its business practices. This does not prohibit Grantee from establishing a gradua
and classified rate schedules to which any customer coming within the classificatio]
Grantee will not deny access to cable service to any potential residential customer be
of the customer or of residents of the area in which the customer is located. Grante,
service programming on an equal basis to all areas of the City.
B. Grantee will not discriminate in any way in the provision of services
basis of race, color, religion, national origin, age, sex, or disability.
C. Grantee will not discriminate against any Person in its employment practi
color, religion, national origin, age, or sex, nor will Grantee discriminate in its em
against any qualified person because of disability.
Section 10. Approval of Transfer.
A. All of the rights and privileges and all of the obligations, duties, and liabi
Ordinance shall pass to and be binding upon the successors of the City and the. perm
assigns of Grantee; and the same shall not be assigned, transferred, sold, or di§pose
no sale, merger, consolidation, or transfer of controlling ownership interest in Grant{
638283.3 9
~ND THE CITY'S
'ir DAMAGE TO
N THE EVENT
ALLATION OR
ES BY THE CITY
',s in hard copy and
City Manager.
ernmental agencies,
maintenance work
aoving of buildings
.~rantee may charge
arering of wires and
test be made at least
5, alleys, sidewalks,
atee's facilities. All
;nse.
bject any Person to
,ns, or other aspects
ted scale of charges
.~ would be entitled.
cause of the income
: will provide cable
o customers on the
ces because of race,
.ployment practices
lities created by this
itted successors and
:1 of by Grantee and
:e shall be permitted
without the prior written approval of the City Council, which approval shall no:
withheld; however, this Section shall not prevent Grantee's assignment or pledg
granted by this Ordinance as security for debt without such approval; and pro'
assignments, transfers, sales, or dispositions by Grantee of Grantee's rights, duties, am
this Ordinance or the sale, merger, consolidation, or transfer of controlling interest
entity controlling, controlled by, or under the same common control as Grantee
without the prior written approval of the City Council; provided, further Grantee shall
to the City Manager of all such actions at last sixty (60) days prior to the effective
B. Any permitted successor or assignee of Grantee will be bound by al
Ordinance. Any transfer or assiglunent or other action will be effective only when fl
written acceptance and agreement to be bound by this Ordinance with the City Mat
Section 11. Payment of Franchise Fee to City; Audit.
.
A. The City Council finds that the City rights-of-way to be used by Grantee
services in the City is valuable public property, acquired and maintained by the
expense and obligations to City taxpayers. Without the rights granted by this Ordina~
be required to undertake substantial investments and obligations in acquiring its owr
easements. Grantee agrees to pay to the City as general compensation a franchise fe
percent (5%) of Grantee's gross revenue derived within the City fi'om cable service
limited to installation fees, subscriber fees, and pay television services, but excluding
than fees payable under this Section) collected by Grantee and wholly transmitted
authority). It is the intent of the parties to include in the term "gross revenue
consideration to Grantee, cash and otherwise, that Grantee derives from the provisi
through and in connection with Grantee's facilities, including the following:
1. all fees charged to Grantee's customers for use of Grantee's faci'
2. revenues from leasing Grantee's facilities to third parties for pr
otherwise governed by the terms'of this Ordinance;
3. advertising, including a prorata portion of national revenue attr
fi'om the operation of Grantee's facilities in the City; and
4. sale or rental of customer lists.
"Gross revenue" does not include Grantee's revenues from teleconur
nor does it include revenue not actually received.
B. Grantee will make franchise fee payments to the City computed and p
(30) days after the close of each quarter of Grantee's fiscal year, currently ending
each year. Grantee will make these payments to the office of the City Manager. E:
accompanied by a summary of the data and calculations to support the amount of the
a breakout by month.
'" 638283.3 10
be unreasonably
: of the franchise
vided further that
t obligations under
in Grantee to any
:hall be permitted
give written notice
late thereof.
the terms of this
te assignee files its
tager.
in the provision of
City at substantial
~ce, Grantee would
fights-of-way and
: consisting of five
(including but not
taxes or fees (other
to a governmental
:" the value of all
on of cable service
ities;
ovision of services
[butable to Grantee
tunications services,
aid quarterly, thirty
on December 31 of
tch payment will be
payment, including
C. The compensation described in this Section is in addition to all special as,,
including, but not limited to, ad valorem taxes, fight-of-way construction permits,
assessments for recovery of costs incurred by the City.
D. For any quarterly payment made after noon on the date due, Grantee shal
charge of $100.
;essments and taxes,
inspection fees, and
pay a late payment
F. Grantee will file with the City Manager a statement of Grantee's gross re
its business and operations in the City for each fiscal year not later than the 120~
Grantee's fiscal year which is, on the effective date of this Ordinance, December 31.
contain a detailed description of gross revenue and uncollectible accounts for the
G. Grantee will keep complete and accurate records and books of accounts
operations in the City in accordance with generally accepted accounting principles.
the fight to inspect and audit Grantee's income records and the right to recon
determined to be payable under this Ordinance. An audit of any fiscal year may b
during the term of this Ordinance but limited only to the examination of Grantee's b~
complete fiscal years immediately preceding the date of such audit request. Any ad~
as a result of such audit, together with interest at the maximum interest rate permitl
last day of the fiscal year from which such additional amount is due, shall be pair
thirty (30) days following written notice to Grantee by the City, which notice shall it
audit report. The cost of such audit shall be borne by Grantee if it is determined
should be increased by three percent (3%) or more of the City's annual franchise
immediate preceding two (2) calendar years from the date of such audit. Shou
deficiency following an audit of Grantee's books, the City shall have the right dur
Ordinance to conduct a second examination of Grantee's books which may, at the C
to the time period ending with the last audit period that reflected a deficiency in th~
an independent account firm to be mutually agreed upon between the parties.
H. Acceptance of any payment by the City shall not be construed as a rele
and satisfaction of any claim the City may have for fitaher or additional sums payab
or for the performance of any obligation of Grantee hereunder.
I. Grantee's books of accounts and records of its business and operal
connection with this Ordinance shall be available at Grantee's office in San Antoni
shall have access upon reasonable advance written notice and at reasonable tim
Grantee's books of accounts and records of its business and operations in the
reasonably necessary to enforce the terms of this Ordinance. Any intentional fals{
of account or records of Grantee or any intentional false statement in the reports
material fact, knowingly made by Grantee shall constitute a major violation e
Unintentional errors in such books and reports shall not constitute a violation.
638283.3 1 1
ace of payment will
trued as a release of
venue derived fi'om
lay after the end of
The statement must
of its business and
The City shall have
tpute any amounts
e made at any time
~oks for the two (2)
titional amount due
:ed by law fi'om the
to the City within
elude a copy of the
that franchise fees
fee received in the
ld there be such a
.ng the term of this
.ty's option, extend
City's expense by
me or as an accord
[e as a fi'anchise fee
ions under and in
o, Texas. The City
es to review all of
City to the extent
entry in the books
to the City as to a
f this Ordinance.
or fights of the City, whether under this Ordinance or otherwise. The City's accepta
not be construed as an agreement that the amount paid is correct, nor will it be cons'
any claim which the City may have.
E. Grantee's payment of compensation under this Section does not limit or i npair the privileges
Section 12. Term of Franchise; Extensions; Forfeiture; Termination.
A. This Ordinance will be in full force and effect for a term of fifteen (1
September 1, 2000.
B. Grantee will be entitled to receive one five (5)-year extension of the tern
The request must be in writing and must be submitted to the City Manager no 1~
2012. The extension, upon timely notice to the City Manager, will be automatic if
and
1. Grantee is in compliance with the material terms and conditiom
2. Grantee's performance has been consistent with current overal
practices and range and level of services, and Grantee has the demonstrate{
to perform consistently with industry practices during the extension perio,
improvements to Grantee's facilities that are commercially feasible.
C. The City Council may initiate a review of the performance of Grantee tn
at any time. To determine satisfactory performance, the City will consider (
performance, its customer service experience, and its compliance with the terms o'~
the City Council finds the performance of Grantee to be unsatisfactory, the City 1~
Grantee in writing of the specific areas of unsatisfactory performance and give Grant~
to correct the deficiency. If Grantee does not correct the deficiency within the ti:
Council may terminate this Ordinance.
D. Grantee commits a default under this Ordinance if Grantee
1. fails to make any required payment to the City in a timely mann~
2. violates Section 3B, 3C, 6A, 6B, 8F, 8G, 1 lA, 1 lB, 11D, 1
material provision of this Ordinance or any determination made by the Cil
Council under this Ordinance, or fails to comply with any City requiremen
3. fails to exercise diligence in commencing or completing constn
facilities;
4. fails or ceases to furnish cable services in accordance with this O
5. attempts to evade any of the provisions of this Ordinance or atten
fraud or deceit upon the City.
E. In addition to all other rights of the City under this Ordinance or otherwi
may terminate this Ordinance on the basis of a default by Grantee if Grantee fails
within thirty (30) days after receipt of written notice fi'om the City Manager of the
different time period set by the City Manager for good cause in the notice of defau
F. In the event the City terminates this Ordinance, Grantee will have ninety
date of receipt of notice of termination to remove all of its facilities from City righ
638283.3 12
5) years beginning
~ of this Ordinance.
~ter than January 1,
of this Ordinance;
industry technical
ability and agrees
t by implementing
~der this Ordinance
}rantee's technical
this Ordinance. If
{anager will notify
:e a reasonable time
me given, the City
, 11I, or any other
y Manager or City
tction of Grantee's
rdinance; or
~pts to practice any
~e, the City Council
to cure the default
default, or within a
.lt.
(90) days from the
:-of-way. The City
may remove and dispose of, or may assume ownership of and may use, any of Gra
are not timely removed by Grantee. The City may charge any costs for remo'
Grantee's facilities to Grantee.
G. Any failure of the City to enforce any provision of this Ordinance in on
will not be construed as a waiver of the City's fight to fully enforce this Ordinanc,
Section 13. Equal Treatment.
If at any time during the term of this Ordinance, Grantee modifies or r,
agreement with any other franchisor located wholly or in part in Bexar County, ~I
notify the City and provide the City with a copy of such modification or renewal
fi'anchise agreement, as modified or renewed, contains provisions relating to fi'ar
calculations or payments, or services provided to or available to the grantor o:
residents, and the City believes such provisions to be of benefit to the City, then, al
of the City, such provisions shall be incorporated into this Ordinance. The City a~
the City shall not request inclusion of any provisions relating to (1) purchase of Gr
the City; (2) expenditures related to franchise renewal or modification; or, (3) put
governmental access in excess of that required by law.
Section 14. Miscellaneous Provisions.
A. Notices required by this Ordinance will be provided by the parties to one
mail, remm receipt requested, or by confirmed facsimile transmission, to the follo
To the City:
City of Schertz
City of Schertz Municipal Offices
1400 Schertz Parkway
P. O. Drawer 1
Schertz, TX 78154
Attention: City Manager
Fax: 210/658-7477
To Grantee:
Western Integrated Networks of Texas Operating L.P.
2000 South Colorado Boulevard, Suite 2-800
Denver, CO 80222
Attention: Chief Executive Officer
Fax: 303/407-1630
If a party changes its address or facsimile number for notice purposes, it will provi,
the change to the other party within ten (10) days. ~
638283.3 13
ntee's facilities that
~al and disposal of
.e or more instances
~ after that time.
~news its franchise
'exas, Grantee shall
instrument. If such
tchise fees, city tax
a franchise or its
the written request
.tees, however, that
antee's facilities by
dic, educational, or
another by certified
Mng addresses'
:le written notice of
B. If any word, phrase, clause, sentence, or paragraph of this Ordim
unconstitutional or invalid by a court of competent jurisdiction, the other provision
will continue in force if they can be given effect without the invalid portion.
C. If Grantee is rendered unable to carry out a specific obligation under th
than an obligation to make payments to the City, because of a circumstance beyon.
(an "uncontrollable circumstance"), such as a civil disturbance, unforeseeable m
shortages, unavoidable casualty, labor dispute, severe weather, or other similar event,
role, or regulation of any court or government body having jurisdiction over Grant{
imposed by the City which have the effect of rendering Grantee unable to perform
this Ordinance, Grantee will give prompt written notice to the City of the uncontro]
and the obligation involved, and the obligation will be suspended during the period o
circumstance.
D. This Ordinance will be in effect fi'om and after its passage by the City
publication of notice its adoption in a newspaper of general circulation in the City as
Charter and the filing of acceptance by Grantee with the City Secretary.
E. Grantee will have thirty (30) days after the date of the publication of nc
this Ordinance to file its written acceptance with the City Secretary. The written ar
the form attached as Exhibit A.
[The remainder of this page intentionally left blank.]
638283.3 14
nce is held to be
.s of this Ordinance
is Ordinance, other
:1 Grantee's control
.medal and service
or an order, decree,
~e, or any mandates
under the terms of
ilable circumstance
fthe uncontrollable
2ouncil of Schertz,
'equired by the City
,tice of adoption of
ceptance will be in
PASSED AND APPROVED on first reading the 12~ day of July, 2000.
MAYOR /'~dc--/~-~-~ ~'
ATTEST:
PASSED AND FINALLY APPROVED on the 15~ day of August, 2000.
ATTEST:
CITY SECRETARY
638283.3 S-1
THE STATE OF TEXAS,
PUBLISHER'S AFFIDAVIT
County of Guadalupe
Before me, the undersigned authority, on this date personally appeared
known to me, who, being by me duly sworn, on his oath deposes and s~
Publisher of The Seguin Gazette-Enterprise, a newspaper published in
a copy of the within and foregoing notice was published in said newspa
the return day named therein, such publications being on the following c~
July 28, 2000
L. A. Reynolds,
ys that he is the
~aid county; that
~er 1 time before
ates:
and a newspaper copy of which is hereto attached.
Sworn to and subscribed before me this ,~'~
day of July A.D., 201
CAROL ANN AVERY
/*
Notary Public, Guadalup
e County, Texas
PUBLISHER'S AFFIDAVIT
THE STATE OF TEXAS,
County of Guadalupe
Before me, the undersigned authority, on this date personally appeared
known to me, who, being by me duly sworn, on his oath deposes and sa
Publisher of The Seguin Gazette-Enterprise, a newspaper published in s
a copy of the within and fom§oin§ notice was published in said newspap
the fotura day named therein, such publications being on the following d~
August 27, 2000
and a newspaper copy of which is hereto attached.
Sworn to and subscribed before me thisY day of August A.D.,
_. ^. Reynolds,
ys that ho is tho
.aid county; that
er 1 time before
~tes'
_~000.
Notary Public, Guadalup~ C'oufity, Texas